In today discussion we are going to talk about what you can do with a writ of execution and how you get one from a debt collectors stand point.
To get a writ of execution from the court (which cost $25) you first need to win you case and get a judgment against someone or company. Once you are awarded a judgment, you can file for a Writ of Execution from the court against the person or entity that you have a judgment against. The Writ should be sought from the same court that awarded you your judgment.
The writs work in counties. So you need to do some research and figure out where you want to use your writ. So say your debtor has a bank account in Santa Monica, you will need to get a writ for Los Angeles county since Santa Monica is within the county of Los Angeles.
From a collectors perspective, having a writ of execution allows to levy against bank accounts, place a sheriff to obtain cash, or property.
A writ of execution is a court order granting you an attempt to satisfy a money judgment against someone.
Here is what you need to do a bank levy:
The first thing that you need to have is a Judgment against the person that owes you money. The second thing you need is banking information on them. A cashed check or banking information listed in their credit application are areas to look. If they are a business consider buying something from them and see where they deposit the check. If you lack their banking information consider hiring an expert to get that information like a collection attorney or private investigator.
Once you have your judgment and banking information in hand, you need to file for a Writ of Execution, with the court, for the county that bank branch is located in. The filing fee for a Writ of Execution is $25.00. Once you get your Writ back from the court, you need to have the sheriff office serve your writ of execution and bank levy instruction on your debtor’s bank.
Its also a good idea to call their bank and ask if their bank account is still valid. The bank will not tell you if there is money in the bank account but they can verify if the bank account is still valid. They will save you some money if their bank account is closed.
If you levy the right bank and bank account, the debtor has 10 days after they are notify by the bank that their funds have been seized to satisfy your judgment, to do something about it (i.e., contact you to work something out or prove that it is not correct)…the bank will then release the funds to the sheriff office. The sheriff office will then issue you a check for the amount seized minus a small administrative fee for the government.
Keep in mind that you can only get what is in the bank account on the day that the bank is served by the sheriff’s office. So if your judgment is for $500.00 and there is only $200.00 in the account, then all you get is $200.00. You will have to pay the bank levy fee and have the sheriff office hit their bank account again to get the remainder.
You can also only recover your judgment amount. If your judgment is for $500.00 and there is $2,000.00 in their bank account, you only get your $500.00 plus the daily interested award by the court and your writ of execution fee. Nothing more.
I hope this gives you some guidance to do your own bank levy.
With companies going under on a daily basis these days, a good question was presented: Can you be liable for charges that you put on the company credit card if the company goes under but doesn’t file for bankruptcy?
The answer is maybe. It all depends on the terms of the credit card agreement. Some agreement state that the credit card company must go after the company first before they look to you. Others give the company the right to go after the person using the card. Especially if the card was used to purchase something that you keep for yourself as opposed to being in the possession of the company.
Keep in mind that if you use the company card to purchase something for the company and pursuant to the company’s instruction and the credit card company goes after you, you can always sue your employer.
But that might not be the best thing if your company is going under anyways.
West Virginia Attorney General has announced that they will sue Captial One and a debt collection agency for “unconscionable conduct in connection with their credit card lending and collection practices”.
What did Capital One do? Capital One tricked consumers into payment plans by sending them solicitations disguised as offers of new credit. The arrangement allowed Cap One to re-age the debt so that it did not fall under the statute of limitations.
Basically what the debtors did was reaffirmed their debt with Capital One by requesting for what they did thought was new credit and this allow the statute of limitation to get extended, giving Capital One the ability to go after these debtors, after the statute had run out.
A creditor can only garnish up to 25% of a debtor’s earned wages. However, the debtor may be eligible to claim that all or part of the 25 percent is exempt as necessary for the support of the debtor and their family.
The wage exemptions may be not be available unless the judgment debtor is an employee as defined by CCP Section 706.011(c). What this means is that if the earnings are of a self employed person or a sole proprietor then you might be able to garnish up to 100 percent of their wages.
Also a person can only be the subject of one wage garnishment at a time. If a prior garnishment is in effect then the second is ineffective.
The State of New Jersey has become the capital for collection agency. More collection agency are currently working out of New Jersey then any other state in the United States. This is a by product of the state giving incentive to small business to come to state and starting new business.
This may be a great story but at the same time, many of these collection agency are being run by ex felons who are fighting the law with their collection efforts. It was recently reported that one of the biggest collection agency in New Jersey was able to generate huge revenue because they were pretending to be attorneys and threatening to take bogus legal action against debtors for their money.
The State attorney general has been reviewing the matter and investigating many agency.
So be careful if you start to see new files referred from New Jersey.
A successful party in an action on a book account may recover attorney fees limited to the lesser of $800 for book accounts maintained for consumer purposes, $1000 for commercial book accounts, or 25% of the principal obligations. In any event the fees awared must be the lesser of the amounts allowed under Section 1717.5(b), the amount of any default attorney fee schedule dopted by the court, or an amount otherwise provided by the court.
The amount collected for attorneys fee also cannot be split with the client. So it should not be considered as part of their recovery.
Generally, the community (the estates of a marriage) is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has management and control of the property and regardless of weather one or both spouses are parties to the debtor or to a judgment for the debt.
The separate property of a married person is not liable for a debt incurred by the person’s spouse before or during marriage, except for necessities of life.
There is one major exception to these rules: Community property earning are not liable for the premarital debts of the nondebtor spouse if they are kept segregated.
On dissolution, when the spouse divide their community and quasi-community property, property received by one of the spouse is not liable for the debts incurred by the other or during marriage unless the debt was assigned to the spouse.
So you managed to get a Judgment against your debtor. Or you won a money judgment against some one who you sued for whatever reason. What do you do next?
Well you need to convert that judgment into money. So how do you do that? Well there are a wild variety of possibility depending on what you have or know about your debtor or defendant. Is your debtor an individual or a corporate entity.
Our first focus will be on the individual. If you have an individual debtor, you need to look through your files and see what type of personal information you have on him or her. Ideally, you have their bank account.
If you have their bank account, you can ask the court to issue you a writ of execution and they send the writ along with your sheriff instruction to levy on the bank account.
If no banking information exist, do an asset search to see if they own any real property. Then get an abstract judgment and record it in the county that their property resides in. This will put a lien on their property. The lien will last for 10 years and can be renewed. The lien forces them to pay you off when they attempt to sell or refinance their mortgage. Its an very effective way to get pay.
You can also consider doing a debtor examination. A debtor examination involves subpeaning them to the court and asking them questions about their fiancial situation.
Debtor Anonymous, a support group for those addicted to overspending, model after the Alcoholics Anonymous program, has its own 12 step program to recovery from chronic debt. There is no fee to join the program.
The voluntarily organization is composed of 513 US and overseas group.
The first step is to track all your spending for 90 days. At the end of the 90 days, a new member is paired with two veterans who help devise a spending plan. The new member learns how to set aside funds for predictable expenses, like rent and car payments.
The program also helps those who are compulsive shopping. Basically those that cure their bad days with a shopping spree. They are though to call their designated mentors on bad days to avoid the shopping outlet.
Learning to live without relying on unsecured debt, such as credit cards, is a tenet of Debtor Anonymous (DA). DA can be a lifesaver, if done right, say consumer finance experts.